Another blog by Ahmad Ali Karim…

Tag Archives: Federal Constitution

I wrote this post on the night of September 10, 2017, but due to the internet problem while I was travelling, I only can post this article today after I got home from the six days trip.

This morning (Sunday September 10), I attended a program that was held at the beautiful Masjid Sultan Iskandar in Bandar Dato’ Onn, Johor Bahru where the Member of Parliament of Johor Bahru, Tan Sri Shahrir Abdul Samad was one of the speakers.

I wanted to speak to Tan Sri Shahrir every time I saw him in various programs in Johor, but this is the first time I had the opportunity to do so.

Tan Sri Shahrir is an interesting person to talk to, we had a casual talk on current issues without the formalities and a couple of times he teased us.

I am glad to meet a politician who truly understands the importance of the correct interpretation of the position of Islam as the religion of the Federation, which lots of politicians, especially from the opposition parties either do not understand or are trying hard to redefine by claiming that Islam is merely the official religion of the Federation, regardless the word ‘official religion’ has never been written in the Federal Constitution.

Tan Sri Shahrir is a very good politician; principled and strict, yet very kind, polite, soft spoken, funny and very friendly.

When Tan Sri Shahrir was appointed as the chairman of the Federal Land Development Authority (FELDA), my father excitedly told me that Prime Minister Najib had made a very smart decision.

“Nothing to Hide 2.0” forum, which is organised by Parti Pribumi Bersatu Malaysia (PPBM) and to be held on Aug 13, 2017 is supposed to be the platform where the party promises to answer all the questions asked by its audience.

Anyhow, funnily Free Malaysia Today (FMT) reported that, “Mahathir said the platform would be a good place for Najib to address the allegations against him once and for all”.

In my opinion, in contrary to what was said by Tun M as reported by FMT, PPBM should not waste its time and money on PM Najib, but should make full use of the opportunity to clear out issues that are bothering some of their supporters and the general public, especially about the vision and mission, as well as the direction of the party in the future.

I have an important question that Tun M had failed to answer in the letter that was sent to me by Tun M as to answer an important question regarding PPBM’s agreement with DAP, PKR, PAN that I wrote in my blog post on the 10th of January, 2017.

In the agreement which was named, Perjanjian Kerjasama Pakatan Harapan – PPBM, the four parties agreed on several main issues including to uphold the Federal Constitution.

In the post, I asked why did the parties involved added the word “bebas” to the Article 3(1) which will definitely undermine the position of Islam as the religion of the Federation and distort the interpretation of the Article 3(1)?

To my surprise, on January 12, 2017, I received a letter from Tun M himself to answer the question I had asked in my post.

The letter was sent by the Office of Datuk Badariah Arshad, Director of Operations, Perdana Leadership Foundation (Yayasan Kepimpinan Perdana) to my father via e-mail, to be forwarded to me.

Unfortunately, not only Tun M’s explanation failed to answer my question, but it made the matter even more confusing.

In contrary to what was written by Tun, the Article 3(1) is the Article that confers Islam as the religion of the Federation and it’s position over other religions in Malaysia and not about the rights to convert to other religions as what Tun tried to explain in his letter.

The letter that was sent to me by Tun Dr. Mahathir.

So, if I will be able to attend the program, I really want to ask Tun M the above question as the issue is crucial for it touches on the supreme law of our Nation and hopefully this time Tun M will be able to answer my question because he has Nothing to Hide.

For my 14th birthday this year, my eldest sister gave me a law textbook entitled “A First Look at the Malaysian Legal System”, written by Wan Arfah Hamzah and published by Oxford Fajar.

I was very excited to receive a book on the subject that is close to my heart, and so I began reading the book.

As I reached the fourth paragraph of page four, I noticed something peculiar:

“The federation is a secular state (see below, pp 162-3). It is not an Islamic state (an indispensable feature of which is the supremacy of the Syariah or Islamic law). In Malaysia the supreme law is the Federal Constitution (Article 4), not the Syariah or the Islamic law. Far from being the supreme law, Islamic law is not even the basic of the law of the land, ie the law of the general application. The basic law of Malaysia is the common law—the principles of which have their origins in England” ~Page 4 – A First Look at the Malaysian Legal System

It is very alarming that a law text book can make such a dreadful mistake in defining the core principal of our country.

The point is, does the Federal Constitution which is the supreme law of the Federation, ever define Malaysia as a secular country?

In “The Principles of Secularism”, the author and creator of the term ‘secularism’ George Jacob Holyoake defines secularism as separating government and religion; while Merriam-Webster defines secularism as “the belief that religion should not play a role in government, education, or other public parts of society”.

In reference to the ideology of our country, the Article 3(1) of the Federal Constitution states that:

Islam is the religion of the Federation; but other religions maybe practised in peace and harmony in any part of the Federation.

In actual fact, without doubt, the Article 3(1) automatically denies any claim that says Malaysia is a secular state; for a countrycannot be a secular state when it has a specific state religion, in this case Islam which makes Malaysia an Islamic state.

Anybody who reads the Federal Constitution, will find out that the word “secular” has never been mentioned in the Federal Constitution but Islam is mentioned again and again through out the Constitution, proving the importance of Islam as the basic structures of the Constitution.

It is an established principle of constitutional construction that no one provision of the Federal Constitution can be considered in isolation. That particular provision must be brought into view with all the other provisions bearing upon that particular subject. This Court in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd & Anor [2004] 2 MLJ 257, applied the principle of considering the Constitution as a whole in determining the true meaning of a particular provision. This Court held:-

“A study of two or more provisions of a Constitution together in order to arrive at the true meaning of each of them is an established rule of constitutional construction. In this regard it is pertinent to refer to Bindra’s Interpretaion of Statue 7th Ed which says at page 947-948″

It is absurd to conclude that Malaysia is a secular country because of “the supreme law is the Federal Constitution (Article 4), not the Syariah or the Islamic law” for the Article 4 in no way dispute the constitutionality of the Article 3(1); andthe fact that Malaysia has both the civil and the Syariah Court systems proves that Malaysia is not a secular country.

The fact is, it is the Article 4 that intensify the fact that Malaysia is an Islamic country because Islam as the religion of the Federation is placed in the Article 3(1) which is in a higher order of precedence of the Articles than the Article 4.

Therefore it gives Islam a higher position than the supreme law itself, meaning the supreme law of the land must be read and interpreted subjected to Islam as the religion of the Federation as mentioned by the then Federal Court Judge, Tan Sri Apandi Ali in the Court of Appeal judgement of Titular Roman Catholic Archbishop of Kuala Lumpur v. Kementrian Dalam Negeri & Kerajaan Malaysia, also known as the Kalimah Allah case:

The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3 rd in the order of precedence of the Articles that were within the confines of Part I of the Constitution

In answering the argument regarding the intention of the Reid Commission, first we have to understand that it is the Royal Rulers and not the Reid Commission who are the real stake holders of our country.

The Reid Commission was only given the responsibilities to draft the Federal Constitution but it is the Malay Royal Rulers who had the rights to make the final say on the matter as well as to give the endorsements for the words to be written in the Federal Constitution.

It is vital to note that both the Reid Commission and the Cobbold Commission are neither law makers nor the state holders of our country, hence their words and intentions are not laws, therefore their intentions cannot change the words written in the supreme law of our Nation.

As for claiming that Che’ Omar bin Che’ Soh v. Public Prosecutor defines Malaysia as a secular country, this is a very lame argument with no valid fact to justify the claim.

In the Supreme Court decision of Che Omar Che Soh v Public Prosecutor (1988) 2 MLJ 55, the Judge, Tun Salleh Abbas only said that Malaysia follows the secular laws from the British, and did not say that Malaysia is a secular state; so how could this case be used to prove something that was not even stated in the judgement?

In fact, the fact that it is the government’s constitutional duty to protect the sanctity of Islam also denies that Malaysia is a secular country.

I would add however that the position of Islam as the religion of the Federation, to my mind imposes certain obligation on the power that be to promote and defend Islam as well to protect its sanctity. In one article written by Muhammad Imam, entitled Freedom of Religion under Federal Constitution of Malaysia – A Reappraisal [1994] 2 CLJ lvii (June) referred to by the learned counsel for the 8th appellant it was said that: “Article 3 is not a mere declaration. But it imposes positive obligation on the Federation to protect, defend, promote Islam and to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their life according to the Islamic injunction spiritual and daily life.”

In a secular state, not only the government has no constitutional duty to protect the sanctity of a particular religion, but it is wrong for the government to do so.

Apart from Article 3(1), the Articles 11(4), 12(2), 37, 121(1A) and a lot more further prove that Malaysia is and was meant to be an Islamic state and not a secular state; unless the book tries to redefine ‘secularism’ or implying that the Articles 3(1), 1(4), 12(2), 37, 121(1A) and others related to Islam are unconstitutional.

Such severe mistake in the law textbook regarding the ideology of our country that contradicts the Federal Constitution should not have happened because all Malaysian must respect and uphold the Federal Constitution of Malaysia and making such a mistake regarding the core principle of our country is really uncalled for.

It seems that the idea of turning Penang into a Christian city is alright to Arrifin, who is also the vice-chairman of DAP, as what he said in the Dewan Negara:

The DAP leader may think that with the power that DAP now has over Penang, DAP leaders can do anything, even interfering in the matters related to Islam.

Is this DAP’s good governance is all about?

The main issue here is, has the DAP man forgotten that in the Article 3(3) of the Federal Constitution, it is clearly written that the Yang Di-Pertuan Agong is the Head of the religion of Islam in Pulau Pinang?

The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make provision for conferring on the Yang di-Pertuan Agong the position of Head of the religion of Islam in that State.

The DAP man must understand that it is the constitutional duty of the Yang Di-Pertuan Agong to “at all time protect the Religion of Islam”, as stated in the oath of office of the Yang Di-Pertuan Agong, or the Article 37(1); the text is written in Part I and III of the Fourth Schedule of the Federal Constitution.

And the Article 32(1) states that the Yang Di-Pertuan Agong is the Supreme Head of the Federation.

Although the state of Penang is now ruled by DAP, the Supreme Head of Penang is still the Yang Di-Pertuan Agong and not a DAP leader; hence the power of the Penang state government is not above the Yang Di-Pertuan Agong, especially in matters related to the sovereignty of the state.

Having said that, Dr. Ariffin Omar’s arrogant statement is not merely rude but also offensive and might has the tendency to challenge and to deprive the Yang Di-Pertuan Agong from the sovereignty of Penang.

The Section 121B of the Penal Code says that anyone whoever compasses, imagines, invents or intends the deposition or deprivation of the Yang di-Pertuan Agong from the sovereignty of Malaysia shall be punished with imprisonment for life and shall also be liable to fine.

And the Section 121C(1) of the same Act says that whoever abets the commission of any of the offences punishable by section 121A or 121B shall be punished with the punishment provided for the said offences while the Section 121D(1) says that whoever knowing or having reason to believe that any offence punishable under section 121, 121A, 121B or 121C has been committed intentionally omits to give any information respecting that offence,which he is legally bound to give, shall be punished with imprisonmentfor a term which may extend to seven years or with fine or with both.

Dr. Ariffin’s offensive statement had enraged the Muslim, causing the feeling of enmity and hatred that can bring to the sate of disharmony or disunity on grounds of religion not only in Penang but also in the whole country.

The Section 298A(1) of the Penal Code states that whoever by words, either spoken or written, or by signs,or by visible representations, or by any act, activity or conduct, or by organizing, promoting or arranging, or assisting in organizing, promoting or arranging, any activity, or otherwise in any other manner— (a) causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings of enmity, hatred or ill will; or (b) prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of harmony or unity, on grounds of religion, between persons or groups of persons professing the same or different religions, shall be punished with imprisonment for a term of not less than two years and not more than five years.

It is a fundamental rule for lawmakers to understand the Supreme law of the land.

Article 3(1) of the Federal Constitution states that:

Islam is the religion of the Federation; but other religions maybe practised in peace and harmony in any part of the Federation.

It is my judgment that the purpose and intention of the insertion of the words: “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam.

In the same judgment, Tan Sri Mohamed Apandi Ali also states:

Any such disruption of the even tempo is contrary to the hope and desire of peaceful and harmonious co-existence of other religions other than Islam in this country.

Lawmakers must remember that Malaysia is governed by our rule of law and we are not a lawless country that practices absolute freedom.

Tan Sri Mohamed Apandi Ali in the above ruling also stated:

The alleged infringement of the fundamental liberties of the respondent can be negated by trite law that any freedom is not absolute. Freedom cannot be unfettered, otherwise, like absolute power, it can lead to chaos and anarchy. Freedom of speech and expression under Article 10(1) are subjected to restrictions imposed by law under Article 10(2)(a). Freedom of religion, under Article 11(1), as explained above is subjected to Article 11(4) and is to be read with Article 3(1).

I am very proud to read what was said by Tun Ahmad Fairuz in Free Malaysia Today’s report, “Ex-CJ: Laws that are against Quran and Sunnah are void”.

FMT wrote, “Explaining his interpretation, Ahmad Fairuz who was the chief justice from 2003 to 2007, cited a Privy Council judgement on a case in Singapore, where it said for a law to be valid, it must conform to the fundamental rules laid down by English Common Law.”

“This view seems to be accepted in Malaysia too. But as Islam is the religion of the federation, surely the fundamental principles of the law should be based not only on English Common Law, but (also) on the shariah law.

“I want to stress the aspect of judiciary in the definition of Islam where the Quran and Sunnah are the main sources of Islamic laws.

“Article 4 of the Federal Constitution states that laws which are against the Federal Constitution are void, on the part of the contradicting provisions. And hence, laws that are against the Quran and Sunnah will also be void.”

Explaining about the interpretation of Article 3(1) Tun Fairuz was reported saying:

“In the case of Lina Joy, when I was the chief justice, I said Islam was also a complete way of life that included all aspects of human activities, including judiciary, politics, and economy among others.”

FMT further wrote, “Hence, Ahmad Fairuz, reading Article 3 and 4 together, interpreted the Federal Constitution as making Islamic law the second most supreme legislation.”

Therefore for those who are constitutionally illiterate and shouting that Malaysia is a secular country and the proposed amendment of Act 355 is unconstitutional, please attend Tun Fairuz’s next lecture to learn more about the Federal Constitution from our former Chief Justice.

Director of Suara Rakyat Malaysia (SUARAM), Kua Kia Soong wrote an article, “Keep the Constitution secular and inclusive” which was published on SUARAM’s website on February 20, 2017, in which he stated his view on the move to make Rukun Negara as the preamble to our Federal Constitution of Malaysia.

What really caught my attention was the fact that the SUARAM leader:

claims the Federal Constitution as secular and,

disagree with the first principal of the Rukun Negara which is, “Belief in God”.

The arguments in the press statement are totally out of context as Kua Kia Soong fails to understand both the Federal Constitution and the definition of the word, “secularism”.

The fact is, t is just impossible for the Federal Constitution to be secular when Article 3(1) of the Federal Constitution says that Islam is the religion of the Federation.

Of course, I too do not agree with the idea of making the Rukun Negara as the preamble to our Federal Constitution, but not because I do not agree with any of its five principals; instead my reasons are:

The Rukun Negara it is not a law, therefore having the Rukun Negara as a preamble will undermine the supreme law of the Federation.

Adding a preamble will not help the people to understand the Federal Constitution better.

Having the Rukun Negara as a preamble will increase the probability of misinterpretation of the Federal Constitution.

I cannot see any reason why we need a preamble to the supreme law of our Nation.

Below are my answers (in blue) to Kua Kia Soong’s article in red:

There is an attempt by some “eminent persons” to install the Rukunegara as the preamble to the Malaysian Constitution. If there is indeed a need for such a preamble, it ought to reaffirm the principles of secularism and inclusiveness in the Constitution.

There are no “principles of secularism” in the Federal Constitution of Malaysia. The third Article of the Federal Constitution states that Islam is the Religion of the Federation and that itself denies any allegation that our Federal Constitution is secular. Furthermore, neither can we find any Article in the Federal Constitution that says the Constitution is secular nor can we find the word, “secular” in the Constitution.

In my humble opinion, any attempt to have a preamble to our Constitution needs first to be discussed by all the communities in the country including the Orang Asli, debated and passed through Parliament; secondly, it has to be inclusive.

This “national philosophy” of Rukunegara was proclaimed on Merdeka Day, 1970 as a response to the racial riots of May 13, 1969, when the country was still under a state of Emergency.

Rukun Negara is drafted as a national ideology to bond Malaysians of all races in order to establish peace among the races and to prevent future racial tension in order to avoid racial riots like the May 13 tragedy.

Like the National Culture Policy, it was drafted by selected “eminent persons” rather thaninvolving representation from all Malaysian communities and it did not go through a democratic process of debate, nor was it passed by the Federal Parliament.

The Rukun Negara “did not go through a democratic process of debate, nor was it passed by the Federal Parliament” because it is not a law and was not meant to be a law, therefore, it does not have to go through that process.

While most of its aspirations are noble and acceptable, namely, “achieving a more perfect unity…; preserving a democratic way of life; creating a just society…; guaranteeing a liberal approach towards her rich and varied cultural traditions; and building a progressive society…”; nevertheless, its principle of “Belief in God” is not inclusive of all Malaysian faiths.

There is nothing wrong with the first Principle of the Rukun Negara. “Belief in God” is chosen as the first Principle of Rukun Negara because:

The People and Nation were established based on our strong faith in God. It is indeed in the name of God that the People and Nation were established as a sovereign People and Nation. – Department Of National Unity And Integration (Prime Minister Department)

“Belief in God” is not against the Federal Constitution. Every religion has its god, even those who practice animism worship certain ‘figure of god’. In the case of atheism, there is no constitutional provision that recognises atheism or other liberal ideologies because our Nation is not established based on liberalism.

Any preamble should include all peoples and stress social justice and democracy

In the first place, there is no need for a preamble. Secondly, it is the peoples who must respect the laws and the ideologies of their countries and not the other way around.

The preamble to the US Constitution, for example is short and concise, stressing that their nation is defined and formed by its people and what it stands for:

“We the People … in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution…”

Although peopled largely by Christians, the preamble to the US Constitution makes no reference to a God or monarch. Apart from serving as an executive summary, it merely sets the stage for how the new government defined by the Constitution will establish justice and secure the blessings of Liberty. Thus, their preamble is absolutely secular and the first three words are perhaps the most important: “We the People…”

It is clear that Kua Kia Soong does not understand the basic principles of our Nation. It is illogical for him to expect our Federal Constitution to follow the Constitution of the United States that “makes no reference to a God or monarch” because:

The United States is a secular country while Malaysia is an Islamic country.

The United States is a republic while Malaysia has nine sovereign Sultans.

The SUARAM leader wrote, “Although peopled largely by Christians, the US Constitution makes no reference to a God”. The US, as a secular country it is unconstitutional for the US Constitution to make any reference to any God. So, even if all of the United States’ citizens are Christians, it is still unconstitutional for its Constitution to make any “reference to a God”. And it is crazy for the US Constitution to make any reference to a monarch because the country does not have a monarch.

Perhaps India is a better comparison since it was a former colony like ours. The preamble to the Constitution of India actually makes its secularism explicit:

Again, Kua Kia Soong’s facts are wrong because Malaysia is not a former colony like India. According to Profesor Emeritus Tan Sri Dr. Khoo Kay Kim, British has never conquered the Malay States or the Tanah Melayu except for Pulau Pinang, Melaka and Singapura. The rest of the Tanah Melayu are independent sovereign countries as proven by a few court cases such as Mighell v. the Sultan of Johore (1983) and Duff Development Co v Kelantan Government (1924).

If the Malay States were conquered by British, then our nine sovereign Sultans will lose their sovereignty like what happened in India. The British attempted to conquer the Malay States through multiple ways but failed. (Please read:“Kebenaran Di Sebalik Sejarah Penubuhan Persekutuan Malaysia“)

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation…”

Thus the main purposes of having a preamble to the Indian Constitution are again, first, to refer to the source that is responsible for the authority of the Constitution (We, the People…), and to spell out the objectives of the Indian Constitution, namely, Equality, Justice, Fraternity and Liberty. Like the US constitution, there is no insistence on “Belief in God”.

Another out of context argument by the SUARAM leader. Again, unlike both India and the United States, Malaysia is neither a secular state nor a republic.

The importance of being secular

Malaysia is not a secular state.

So what is the significance of including “Belief in (the monotheistic) God” in the hypothetical preamble to our Constitution?

The Federal Constitution does not need a preamble, so there is no “significance of including “Belief in (the monotheistic) God” in the hypothetical preamble to our Constitution”.

Since the prevalence of Islamic populism in the Eighties, there has been attempts by politicians including one or two Prime Ministers to claim that Malaysia is an Islamic state. Nonetheless, this attempt has been rightfully frustrated by among others, Bapa Malaysia and the judiciary in the country.

Those are common statements made by people who either do not understand the Federal Constitution or purposely trying to misinterpret the supreme law. One must learn to accept facts and not to live in denial, or worst, trying to mislead the people with false facts. The supreme law of the country is the Federal Constitution, so any statement or any attempt by any politician or by any activist like Kua Kia Soong “which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”.

4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. – Article 4(1)

Article 3(1) of the Federal Constitution enshrines Islam as the Religion of the Federation hence making Malaysia an Islamic state no matter what were said by our former Prime Ministers.

3. (1) Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation. – Article 3(1)

For example, on his 80th birthday on February 8, 1983, Tunku’s main message to the Barisan Nasional leaders was not to turn Malaysia into an Islamic State, stressing that Malaysia was set up as a secular State with Islam as the official religion and that this was enshrined in the Constitution. This was echoed a few days later by the third Malaysian Prime Minister, Tun Hussein Onn on his 61st birthday on February 12, 1983.

The Barisan Nasional leaders do not have to turn Malaysia into an Islamic state because from the very beginning Malaysia is already an Islamic state. It is the Supreme law of the land, which is the Federal Constitution that enshrines Islam as the Religion of the Federation, making Malaysia an Islamic Nation.

Statements made by both Tunku and Tun Hussein Onn are not above the Supreme law of the land and cannot change the words written in the Federal Constitution.

The Alliance Memorandum submitted to the Reid Constitution Commission on Sept 27, 1956, clearly stated that “the religion of Malaya shall be Islam … and shall not imply that the state is not a secular state.” Thus, both the Reid Commission in 1957 and the Cobbold Commission in 1962 characterised Malaysia as a “secular state”.

The Reid Commission was only given the responsibilities to draft the Federal Constitution but it is the Malay Royal Rulers who had the final say on the matter and gave the endorsements for the Articles chosen. Both the Reid Commission and the Cobbold Commission are not law makers of our country hence their words and intentions are not laws. Their intentions cannot change the words written in the Supreme law of our Nation.

[31] It is my observation that the words “in peace and harmony” in Article 3(1) has a historical background and dimension, to the effect that those words are not without significance. The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3 rd in the order of precedence of the Articles that were within the confines of Part I of the Constitution. It is pertinent to note that the fundamental liberties Articles were grouped together subsequently under Part II of the Constitution.

Most importantly, former Lord President of the Malaysian Judiciary, Tun Mohamed Salleh Abas in Che Omar bin Che Soh v Public Prosecutor (1988), stated that the term “Islam” in Article 3(1) of the Federal Constitution meant “only such acts as relate to rituals and ceremonies… the law in this country is … secular law.” The previous Lord President Tun Mohamed Suffian Hashim similarly wrote that Islam was made the official religion primarily for ceremonial purposes, to enable prayers to be offered in the Islamic way on official public occasions, such as the installation or birthday of the Yang di-Pertuan Agong, Independence Day and similar occasions.

Che Omar Che Soh v Public Prosecutor (1988) 2 MLJ 55 is an old case which is no longer a good law. Furthermore, in the judgement of the case, Tan Sri Salleh Abbas has never said that Malaysia is a secular nation but Tan Sri Salleh Abbas only said that secular laws were used in Malaysia.

We must look at the judgements of other more important and prominent later court judgements including the Court of Appeal case of Meor Atiqulrahman bin Ishak & Ors v Fatimah Binti Sihi & Ors, High Court case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan, Federal and Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia, and a lot more.

Against the background of confounding populist politicians, one would think that it is even more crucial – if there is a need for a preamble to our Constitution – for such a preamble to reaffirm the secular and inclusive character of our Constitution.

If there is a real need for a preamble to our Constitution, the preamble must reaffirm the Islamic character of our Constitution.

In a secular state, the state is officially neutral in matters of religion, supporting neither religion nor atheism. It treats all its citizens equally regardless of religion. Secularism is not merely desirable but essential for the healthy existence of a pluralist society such as ours. It implies a separation that exists between the State and religion. This does not detract from the fact that the right to religion is a fundamental right and the denial of this freedom is a violation of the basic principles of democracy.

This proves that Malaysia is not a secular state. The Article 3(1) of the Federal Constitution states, “Islam is the Religion of the Federation”, so it is impossible to classify Malaysia as a secular state.

Monotheism is not the only religion in this world

Monotheism is not a religion.

Secularism is also important in regulating the relation between the State and various religious groups on the principle of equality. When the Rukunegara espouses only “Belief in (Monotheistic) God”, it forgets that there are Malaysians of other faiths based on polytheism or animism and ancestor worship.

Malaysia is not a secular state because it has a religion, which is Islam. In fact, it is unconstitutional to regulate “the relation between the State and various religious groups on the principle of equality” because as the Religion of the State, Islam is not equal to other religions. In the High Court decision of the case, Meor Atiqulrahman bin Ishak & Ors v Fatimah Sihi & Ors[2000] 1 MLJ 393, the then Justice Mohd Noor Abdullah had clearly clarified this matter:

In my opinion, “Islam is the religion of the Federation but other religions may be practied in peace and harmony” means that Islam is the main religion among other religions that are practied in the country such as Christians, Buddhists, Hindus and others. Islam is not equal to any other religion, not sitting together or stand upright. It sits on top, he walked past, located in the field and his voice heard. Islam is like teak trees – tall, strong and skilled. If not so Islam is not the religion of the Federation but is one among several religions practised in the country and everyone is equally free to practice any religion he professes, no more one than the other. Provisions ‘Islam is the religion of the Federation’ shall be defined and reviewed with the objective to read other provisions of the Constitution, especially Article 89, 152, 153 and14.

I am truly surprised that our “eminent persons” cannot see that such an imposition of “Belief in God” does not include polytheists, animists and ancestor worshippers. Their attempt to argue that, despite their inclusion of “Belief in God” in the hypothetical preamble, other faiths of minorities are in fact protected by the Malaysian Constitution, unwittingly demonstrates the secularism and inclusiveness of our Constitution.

Now, if the Constitution already guarantees the equal rights of Malaysians of all faiths – monotheistic, polytheistic, atheistic, animistic as well as ancestor worshippers – is it not presumptuous if not sacrilegious to try to impose “Belief in God” on ALL Malaysians?

There is no other religion that was mentioned in the Federal Constitution other than Islam which shows the status of Islam as the Religion of the land. The fact that Malaysia respects minority religions despite being an Islamic state proves the beauty of Islam that respects other religions.

It is a pity that not only there are people who cannot understand and appreciate this fact but they are trying hard to change the history, erase the Social Contract and challenge the Supreme law of the land by claiming that Malaysia is a secular country. As the one and only religion of the Federation, Islam must be respected by people of all faith.

Even though people of other religions can practise their religions as long as it is in peace and harmony towards Islam, but there is no provision in the Federal Constitution to protect other religions other than Islam, for example, the Article 11(4). The interpretation of the term, “in peace and harmony” in the Article 3(1) was clearly made by the then Federal Court Judge, Tan Sri Apandi Ali in the Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia:

The interpretation of the term, “in peace and harmony” in the Article 3(1) was clearly made by the then Federal Court Judge, Tan Sri Apandi Ali in the Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia:

[33] In short, Article 3(1) was a by-product of the social contract entered into by our founding fathers who collectively produced the Federal Constitution, which is recognized as the Supreme Law of the country. It is my judgment that the purpose and intention of the insertion of the words: “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam. It is also my judgment that the most possible and probable threat to Islam, in the context of this country, is the propagation of other religion to the followers of Islam. That is the very reason as to why Article 11(4) of the Federal Constitution came into place.

[42] It is my judgment that, based on the facts and circumstances of the case, the usage of the word “Allah” particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community. Such publication will surely have an adverse effect upon the sanctity as envisaged under Article 3(1) and the right for other religions to be practiced in peace and harmony in any part of the Federation. Any such disruption of the even tempo is contrary to the hope and desire of peaceful and harmonious co-existence of other religions other than Islam in this country.

To conclude, the concept of secularism is derived from the principle of democracy and secularism becomes meaningful only when it refers to democratic equality and includes diverse peoples of all faiths, beliefs and practices.

To conclude, neither the words “democracy” nor “secular” are ever mentioned in the Federal Constitution. Malaysia is an Islamic state with the DYMM Yang di-Pertuan Agong as the head of state and the Prime Minister as the head of the government which is democratically elected by the people through General Elections.

In a recent article posted by Free Malaysia Today (FMT), the author, an FMT reader, Ravinder Singh hit out at the Concerned Lawyers for Justice’s Aidil Khalid for his view on the vernacular schools.

In his article, “Unity has its roots in the people’s hearts”, Ravinder not only undermines and questions the use of the Bahasa Melayu as our national language but also our court rulings.

I have no idea why FMT publishes such an irrational piece of article with baseless, illogical slanderous, offensive, bias and racist arguments that can disrupt our national unity.

Below are some examples of what was written in the article:

Aidil cites legal authorities to support his view about the “destructive and damaging” effects of vernacular schools. He should be reminded that court decisions are made by humans who have sometimes been proven wrong.

National unity is not built by compelling everyone in a country to learn and use a national language.

A national language is a common language for administrative purposes.

It is useless having everyone fluent in the national language when that same language is used to condemn and insult persons of different beliefs and cultures, creating walls between them.

On the other hand, you can have people of different religions, beliefs and cultures living happily together despite not being fluent in a national language. This was what Malaysia used to be.

Isn’t it sad that it is the abuse of the national language by politicians, self-appointed “defenders of the race”, vigilantes, school authorities and academicians that has disunited Malaysians?

There is no need to cite court judgments and or make academic pronouncements. They mean nothing when the reality on the ground is that it is the use of the national language itself that has brought about disunity.

Those seditious statements are uncalled for and are against the Section 3(1)(f) and the Section 3(1)(c) of the Sedition Act because such statements are part of elements that disrupt our national unity.

The Section 3(1)(c) of the Sedition Act states:

A “seditious tendency” is a tendency— to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;

And it is against the Section 3(1)(f) of the Sedition Act to question the national language:

A “seditious tendency” is a tendency— to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.

National unity cannot be achieved unless the people understand the foundation and the history of our country.

Our national language, the Bahasa Melayu is the language that unites us as it is the language that breaks the language barrier of our multiracial society and enables us to communicate with people of all races.

Hence it is wrong to undermine the Bahasa Melayu as merely “a common language for administrative purposes”.

One must learn to argue intellectually and give solid evidence to prove their points and not to resort to using lame, illogical and offensive arguments that prove nothing.

And they must be very careful not to go against the law due to offensive or seditious statements or remarks.

And lastly, the media must play their role to unite the people instead of publishing articles that instigate hatred among the people.